Appropriate Questions to ask in an Interview i

Transcription

1 Appropriate Questions to ask in an Interview i Interviews At the interview stage of the employment process, the employer may expand the scope of job-related questions to determine the applicant's qualifications or ability to perform the essential duties of the job. If the applicant requests accommodation for needs such as those relating to a disability, religion or pregnancy, these needs may be discussed at the interview stage. Otherwise, accommodation should only be discussed after a conditional offer of employment is made. Employers should be prepared to accommodate applicants with disabilities who require accommodation during the hiring process. At the interview stage, the employer has more flexibility to ask questions about prohibited areas of discrimination, provided that the questions relate to exceptions that are provided for in the Code. These exceptions are related to special service organizations, special programs and jobs whose requirements are linked to specific grounds of the Code. i) Age Questions about age are allowed if the employer is a special service organization that serves a particular age group. Special service organizations are defined as religious, philanthropic, educational, fraternal or social in nature, serving mostly the interests of certain age groups. It is permitted to hire persons based on their age provided that age is a reasonable and genuine requirement of the job. A youth group is hiring a social coordinator and the Board of Directors instructs the Executive Director to hire a person under 25 years of age. Even if an employer is not considered to be a "special service organization", it can still discriminate by age if age is a reasonable and genuine qualification because of the nature of the employment. However, the employer is required to try to accommodate other applicants who may apply for the job unless it would be too costly or would involve health or safety requirements. A film producer instructs a casting director to hire an actor to play a character who just completed high school. It would likely be a reasonable and genuine requirement to only screen people who are under 20 years of age.

2 permissible. ii) Citizenship, Place of Origin and Ethnic Origin It is permissible to ask if a person is legally entitled to work in Canada. Questions relating to citizenship are also permitted if citizenship is required by law for the particular job. Questions about citizenship or permanent resident status are also allowed if the job requires a person to promote cultural, educational, trade union or athletic activities to other citizens or permanent residents. Employers are entitled to ask questions about Canadian citizenship or residence where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions. Questions about "Canadian experience" sometimes pose particular problems for recent immigrants and may therefore create an adverse impact on persons based on their place of origin, citizenship or ethnic origin. Employers should try to ensure that candidates have trade or professional qualifications without requiring Canadian experience. Of course, if there is a legal requirement for citizenship, or other qualifications that have to be certified or acquired in this country, the law would have to be reasonable and non-discriminatory, failing which the Code would apply. In many instances, there are easy ways to assess a person's skills and abilities without having to contact a Canadian reference or insist on Canadian experience. An employer is looking for a typist/receptionist. Even if the person got their training in another country, there are several options available to an employer to verify skills, including standard testing (typing tests, for example), letters of reference or probationary periods. Special service organizations that are religious, philanthropic, educational, fraternal or social in nature may employ only people from certain groups if the organization serves mostly their interests. In these cases, it is permitted to hire persons based on place of origin or ethnic origin. This exception does not, however, extend to citizenship and is only permitted if membership in the ethnic group, or group identified by place of origin, is reasonable and genuine. iii) Creed / Religion At the interview stage of the employment process, the employer may expand the scope of job-related questions to determine the applicant's qualifications or ability to perform the essential duties of the job. If the applicant requests accommodation, the

3 accommodation needs may be discussed at the interview stage. Otherwise, religious needs should be discussed at the conditional offer stage. An observant Muslim who applies for a job that requires the wearing of a uniform may request accommodation for her religious requirement of wearing a hijab (a head covering). As well, special service organizations that are religious, philanthropic, educational, fraternal or social in nature may prefer to employ persons of a particular religion if the organization serves mostly the interests of that group. In such cases, it is permitted to hire persons based on religion provided that the requirement of belonging to a particular religion is reasonable and linked to the job duties. Questions by a denominational school as to religious membership, if the job involves communicating religious values to students, would be permitted. It should be noted that Roman Catholic schools enjoy constitutional rights and protections that are not affected by the Code. iv) Disability Employers are obligated to offer candidates with disabilities accommodation of their needs if required for any part of the interview or test screening process. The Commission recommends that employers make such an offer to all candidates at the point of inviting candidates for an interview or test. An employer may ask questions that are directly connected to the applicant's ability to perform the essential duties of the job and any accommodation required. Where the applicant s disability becomes an issue at the interview, e.g. where the applicant chooses to talk about his/her disability or the applicant s disability is obvious, an employer may make inquiries at the interview about the applicant s accommodation needs or the applicant s ability to perform the essential duties of the job. Questions should not be gratuitous, such as "How did you end up in a wheelchair?" or "Have you been blind all your life?" They should be asked with the aim of ascertaining the applicant s ability to perform essential duties. Any questions beyond this scope should be made with great caution and vigilance as they may lead to a complaint on the ground of disability should the applicant not be successful. Additionally, if an employer fails to canvass possible accommodation measures where disability has become an issue at an interview, this also could potentially lead to a complaint on the ground of disability should the applicant not be successful. Other disability issues should not be raised until a conditional offer of employment is made.

4 The essence of accommodating people who have disabilities is dignity and individualization. This means that each person must be considered individually in order to determine what changes can be made to accommodate his or her needs. There is no exact formula as to what form of accommodation is appropriate to alleviate the barriers confronting people with disabilities. Each person's needs are unique and must be considered individually when a barrier is encountered. A particular solution may meet one person's requirements but not another's. It is also the case that many accommodations will benefit large numbers of persons with disabilities. However, in all cases, the principle to apply is that of accommodation to the point of undue hardship. A person who requires accommodation in order to perform the essential duties of a job has a responsibility to communicate her or his needs in sufficient detail and to cooperate in consultations to enable the person responsible for accommodation to respond to the request. Questions about disability are allowed by special service organizations that serve persons with disabilities. Special service organizations are defined as those that are religious, philanthropic, educational, fraternal or social in nature and that serve mostly the interests of a particular group, in this case one that is defined by the disability of the persons served. It is permitted to hire persons with disabilities provided that having a disability is a reasonable and genuine requirement of the job. A social service organization serving persons who are deaf, deafened or hearing impaired may prefer to hire a community liaison officer who has a hearing impairment. permissible. All other questions concerning the applicant's disability are prohibited. It should be noted that requests for a driver's license number or a copy of the license, where relevant to the job, should only be made following a conditional offer of employment. V) Family Status An employer may grant or withhold employment or advancement in employment to a person who is a spouse, same-sex partner, child or parent of the employer or an employee. In such cases, inquiries as to whether an applicant is a spouse, same-sex partner, child or parent of a current employee would be permissible. permissible. For example, a special program for single parents may involve a job creation program for such persons.

5 vi) Marital Status Questions about marital status are allowed if the employer is a special service organization that serves a particular group of persons such as single, divorced or other persons identified by their marital status. Special service organizations are defined as those that are religious, philanthropic, educational, fraternal or social in nature and that serve mostly the interests of a particular group, in this case one that is defined by the marital status of the persons served. It is permitted to hire persons based on their marital status provided that this is a reasonable and genuine requirement of the job. A church-based dating social service for single parishioners may prefer to hire a single person to run the events and activities of the service. In some instances, because of the nature of the employment, marital status may be a reasonable and genuine qualification for the particular job. In such instances, inquiries about the particular qualification may be made at the employment interview stage. permissible. No other questions about marital status are permitted. vii) Race, Ancestry and Colour Questions about race, ancestry or colour are allowed if the employer is a special service organization that serves a particular group defined by the race, ancestry or colour of the persons served. Special service organizations are defined as those that are religious, philanthropic, educational, fraternal or social in nature and that serve mostly the interests of a particular group, in this case one that is defined by the race, ancestry or colour of the persons served. It is permitted to hire persons based on their race, ancestry or colour provided that a particular race, ancestry or colour is a reasonable and genuine requirement of the job. Recruiters for a social organization that primarily serves Aboriginal communities seek to hire an employment counselor and may prefer a person who is of Aboriginal ancestry. Questions may be asked during an interview about language abilities, even if those requirements might be indirectly linked to a person's racial background provided that the language abilities relate to a genuine requirement of the job. permissible.

6 viii) Record of Offences Questions to determine if an applicant is bondable, if being bondable is a reasonable and genuine qualification of the job, are permitted. Questions are permitted to determine if an applicant has a record of convictions under the Highway Traffic Act, if driving is an essential job duty (e.g., bus driver). All other questions, except those with respect to unpardoned Criminal Code convictions, are prohibited. ix) Sex and Pregnancy In some instances, because of the nature of the employment, being a man or a woman may be a reasonable and genuine qualification for the particular job. In interviews, an employer can discuss this with the applicant. Special service organizations that are religious, philanthropic, educational, fraternal or social may prefer to employ only men or only women if the organization serves mostly their interests. In such cases, it is permitted to hire persons based on sex provided that the requirement of being a man or a woman is reasonable and linked to the job duties. At the interview stage of the employment process, the employer may expand the scope of job-related questions, if necessary, to determine, for example, the applicant's qualifications or ability to perform the essential duties. If the applicant requests accommodation, the accommodation needs may be discussed at the interview stage. For example, a pregnant woman may have special needs linked to the health of her unborn child. However, the right to equal treatment in employment because of pregnancy prohibits pregnancy-related questions during a job interview. For example, an employer cannot ask an applicant whether she is pregnant or whether she has or plans on having a family, unless it relates to a reasonable and genuine job requirement, and if the employer can show that persons with children cannot be accommodated to the point of undue hardship. permissible. For example, a special program that involves hiring women who are economically disadvantaged would be protected by the Code. x) Sexual Orientation/Same-Sex Partnership Status Questions about same-sex partnership status are allowed if the employer is a special service organization that serves a particular group of persons identified by their samesex partnership status. Special service organizations are defined as those that are religious, philanthropic, educational, fraternal or social in nature and that serve mostly the interests of a particular group, in this case one that is defined by the same-sex partnership status of the persons served. It is permitted to hire persons based on their same-sex partnership status provided that this is a reasonable and genuine requirement of the job.

7 In some instances, because of the nature of the employment, same-sex partnership status may be a reasonable and genuine qualification for the particular job. In such instances, inquiries about the particular qualification may be made at the employment interview stage. permissible. No other questions about same-sex partnership status are permitted. Except in the case of a special program, no questions about sexual orientation are permitted. Hiring? A Human Rights Guide Employment Interviews At the interview stage of the employment process, the employer may expand the scope of job-related questions if necessary to determine, for example, the applicant's qualifications or his/her ability to perform the essential duties of the job. Questions about or related to the "Exceptions" outlined below are also permitted at the interview stage. Examples of permissible interview questions follow. Race / Colour / Ancestry / Place of Origin/ Ethnic Origin Questions about or relating to a service organization working with a particular community as to membership in the group served, if such membership can be justified as required to do the particular job. Questions about or relating to physical characteristics such as colour of eyes, hair, skin, height, weight. Questions about mother tongue, where language skills were obtained and whether one speaks English or French fluently, unless fluency in English or French is a reasonable and genuine requirement for the position. Questions about or relating to birth-place, nationality of ancestors, spouse and other relatives, Canadian citizenship, landed immigrant status, permanent residency, naturalization, requests for proof of Canadian citizenship or Social Insurance Number (A S.I.N. may contain information about an applicant's place of origin or citizenship status. A S.I.N. may be requested following a conditional offer of employment). Questions about or relating to "Canadian" experience for a particular job.

8 Questions about or relating to membership in organizations which are identified by a prohibited ground of discrimination, such as an Anglo-Canadian organization. Questions about the name and location of schools attended. Questions which do not fall into the "Special Interest Organizations" exemptions set out below. Creed Questions by a denominational school as to religious membership, if the job involves communicating religious values to students. All questions which do not fall into the "Special Interest Organizations" exceptions set out below. Citizenship Questions about or relating to citizenship, if required by law for a particular job. Questions about or relating to citizenship or permanent resident status, where cultural, educational, trade union or athletic activities can be restricted to Canadian citizens and permanent residents. Questions about or relating to citizenship or place of residence with intention to obtain citizenship, when an organization requires that a senior executive position be held by a Canadian citizen or a person living in Canada with the intention to obtain citizenship. Questions about or relating to the applicant's citizenship that do not fall within the exceptions outlined in the Code. Sex Questions about or relating to gender, if it is a reasonable and genuine requirement for a particular job, such as employment in a shelter for battered women. All other questions concerning the applicant's sex, including questions regarding pregnancy or child-bearing plans.

9 Sexual Orientation None (except in the case of a special program). All questions about or relating to sexual orientation. Record of Offenses Questions to determine whether the applicant has been convicted of a criminal offence for which a pardon has not been granted. Questions to determine if an applicant is bondable, if being bondable is a reasonable and genuine qualification of the job. Questions to determine if an applicant has a record of convictions under the Highway Traffic Act, if driving is an essential job duty (e.g. bus driver). All other questions except those with respect to unpardoned Criminal Code convictions. Handicap / Disability Employers are obligated to offer candidates with disabilities an accommodation of their needs if required for any part of the interview or test screening process. If the applicant s disability becomes an issue at the interview, e.g. where the applicant chooses to talk about his/her disability, an employer may make inquiries about the applicant s accommodation needs. Inquiries should be limited to the applicant s ability to perform the essential duties of the job. Questions should not be unnecessary, such as "How did you end up in a wheelchair?" or "Have you been blind all your life?". They should be asked with the aim of ascertaining the applicant s ability to perform essential duties. Any questions beyond this scope should be made with great caution and care as it may lead to a complaint on the ground of disability should the applicant not be successful. Additionally, if an employer fails to canvass possible accommodation measures where disability has become an issue at an interview, this also could potentially lead to a complaint on the ground of disability should the applicant not be successful. Any other disability issues should not be raised until a conditional offer of employment is made. These protections also apply to other accommodation needs covered by the

10 Code, such as pregnancy and religious needs, although the requirement to accommodate a disability is based on the needs of the individual, whereas other grounds are protected on the basis of needs of the group. Questions directly related to the applicant's ability to perform the essential duties of the job. All other questions concerning the applicant's disability. Age Questions about or relating to age if the employer serves a particular age group and/or if age requirements are reasonable and genuine to qualify for employment. All other questions about age. Marital Status Questions about or relating to marital status if the employer serves a particular group identified by marital status (e.g. single woman) and/or if marital status is a reasonable and genuine requirement for employment. All other questions as to marital status. Family Status Questions about or relating to family status if family status is a reasonable and genuine requirement for employment. Please see further Nepotism or Anti-Nepotism Policies in "Section 7: Exceptions". All other questions as to family status.

11 Special Interest Organizations Exception (Code, Section 24 (1)(a)) A religious, philanthropic, education, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or handicap, is allowed to give preference in employment to persons similarly identified, if the qualification is a reasonable and genuine one because of the nature of the employment. Inquires about such affiliation may be made at the employment interview stage. i Excerpts taken from Ontario Human Rights Commission Publications on Human Rights in employment (interviewing information only). Complete text of both documents is available at Human Rights at Work. See also Hiring? A Human Rights Guide.